Citation NR: 9636841
Decision Date: 12/31/96 Archive Date: 01/06/97
DOCKET NO. 94-34 877 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for a back disability,
secondary to service-connected residuals of a fracture of
right clavicle.
REPRESENTATION
Appellant represented by: To be clarified
ATTORNEY FOR THE BOARD
L.A. Howell, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1978 to November
1982.
This matter comes before the Board of Veteransí Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, which denied entitlement to service connection
for a back condition secondary to a service-connected right
shoulder disability.
REMAND
Prior to the entry of an appellant decision in this case, a
matter of representation and notice needs to be clarified.
Review of the claims file reveals that in April 1988, the
veteran appointed the Paralyzed Veterans of America (PVA) as
his representative. On the other hand, by letter dated
September 1991, Roosevelt Daniels, II, Attorney of the law
firm of Ferr Smith & Associates wrote to the RO on the
veteranís behalf requesting a status of his claims which was
followed-up by a letter from the veteran dated in October
1991 noting that he had retained Mr. Daniels to represent him
in the matter of his claim for disability benefits. But no
power of attorney signed by the veteran otherwise appointing
Mr. Daniels or revoking representation by the PVA is
associated with the claims file. It is not clear, however,
from a review of the record who, if anyone, the veteran
wishes to be his representative.
Moreover, the file suggests that neither representative has
been fully appraised of the developments undertaken in this
case. For instance, a copy of a letter dated in October 1992
indicating that another claim had been disallowed because the
veteran failed to report to a VA examination was sent to Mr.
Daniels but not the PVA. Further, at the time the veteran
filed the claim for entitlement to service connection of his
back disorder secondary to his service-connected right
clavicle disability in June 1993, he also requested a copy of
his military record and other medical information contained
in his file. When the RO responded to the request a couple
weeks later, it also sent a copy to Mr. Daniels but not the
PVA. The file also indicates that a copy of the rating
decision denying entitlement to secondary service connection
for his back disorder dated August 1993 was sent to the PVA
but not Mr. Daniels. Subsequently, only the PVA was provided
with a copy of the supplemental statement of the case and the
PVA filed an informal brief. However, the record shows that
Mr. Daniels was sent notification of a recent rating decision
dated in May 1996 regarding claims which are not currently
before the Board on appeal. Accordingly, the Board is of the
opinion that clarification is needed on this issue.
In addition, the Board notes that an attempt was made to
schedule the veteran for an examination in connection with
his secondary service-connection claim but that he failed to
report. As the case is in remand status, the Board is of the
opinion that an additional attempt should be made to schedule
a VA examination to determine the status of the veteranís
current disability.
In view of the foregoing, this case is REMANDED for the
following actions:
1. The RO should contact the veteran and
ascertain whether he desires
representation, and if so, by whom. If
he desires representation by Mr.
Roosevelt Daniels, Attorney, he is to be
informed that a specific power of
attorney or declaration of representation
should be executed. If he desires
representation by a Service Organization,
such as the PVA, appropriate forms should
be completed so that the designation of
Mr. Daniels is clearly revoked. If he
desires to proceed without
representation, that should be clarified
in the record, so that the designation of
the PVA and Mr. Daniels is specifically
revoked.
2. Thereafter, if a representative is
specifically selected, he/she should be
offered an opportunity to review the
claims folder, or obtain copies of the
SOC and any SSOCís that have been issued
so that additional argument/evidence may
be submitted, as appropriate. If there
are additional records requested, the RO
should attempt to obtain them as
indicated.
3. The veteran should also be accorded a
VA orthopedic examination in order to
ascertain the nature and etiology of any
back disability that may currently be
manifested. The examiner should be
provided the veteranís claims file prior
to his or her examination of the veteran,
and, following completion of the
examination, should indicate on the
examination report findings and opinions
as to the nature and etiology of any back
disability discerned on examination. The
examiner should be specifically requested
to render findings and opinions as to
whether any back disability shown is
etiologically or causally related to the
veteranís right clavicle disability and
as to whether or not there is any
increase in the severity of the back
disorder caused by the service-connected
shoulder disability. All findings, and
the reasons and bases therefor, should be
set forth in a clear, comprehensive and
legible manner on the examination report.
4. Following completion of the above
actions, the RO should again review the
veteranís claim, and determine whether
service connection for a back disorder
can be granted as secondary to a service-
connected right clavicle disability. In
the event the benefits sought are not
granted, the veteran and his
representative (if there is one) should
be provided with a supplemental statement
of the case and afforded a reasonable
opportunity to respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition warranted in this claim. No action is required
of the veteran until he is notified.
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1995).
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